Wednesday, November 07, 2018

First Amendment Free Speech and the Conduct/Status Distinction

by Sherry F. Colb

In my Verdict column for this week, I talk about the meaning of the #BelieveWomen movement and what it might have to teach us about listening to people with an open and curious mind. The topic of listening to people, in turn, makes me think about the freedom of speech. In this post, I want to consider how we might best understand our free speech dilemmas.
Last week, the Cornell Law School Federalist Society hosted an event which featured University of Texas-Austin philosophy professor Tara Smith of the Ayn Rand Institute as the speaker and me as the commentator. Professor Smith gave an interesting and erudite presentation at which she made the following argument: the way to protect the freedom of speech while properly containing this freedom to avoid rights-infringing behavior is to protect speech but not conduct. It sounds simple and clear, and Professor Smith has a forthcoming article in which she further elaborates upon the claim.

Smith illustrated the speech/conduct distinction with some examples. Saying something or writing something is speech. Speech is not violence. Raising your hand in the air is conduct. Kneeling at a football game is conduct. Baking a cake is conduct. Burning a flag is conduct. And so on. The First Amendment protects the freedom of speech and not the freedom of action.

At its core, Smith added, the freedom of speech is about the freedom of thought. Thought is what distinguishes the sort of speech that does and ought to find protection in the First Amendment from the sort of behavior that should find no such such protection. And thought has no impact at all on other people's enjoyment of their rights.

Smith acknowledged that the First Amendment provides no protection for threats, even though threats are often spoken. But she said that in some sense, making a threat is really an act rather than speech, because it causes all sorts of physical consequences in the world and represents criminal conduct. The same is true for false statements made in the service of selling a vehicle: though one uses words to perpetrate a fraud, those words are in some sense conduct rather than speech because fraud causes financial consequences that affect the rights of others.

When I began my commentary on Smith's presentation, I said that I was in the odd position--probably unanticipated by my hosts--of wanting to be more protective of free speech than Smith was. The speech/conduct distinction, I proposed, really could not do much work in distinguishing between the expression that should and should not find protection in the First (and Fourteenth) Amendment. Rather than try to recall everything I said, I will briefly make my case against the speech/conduct distinction here.

Let me start by re-characterizing the types of speech that virtually no one regards as entitled to First Amendment protection. Smith says that such speech is not "really" speech, because it infringes upon other people's rights in a concrete fashion that accordingly makes it more like conduct. Speech, by contrast, operates by persuading people, leaving those people free to do everything that they could do before the speech happened.

I think that the key examples of supposed not-really-speech are actually speech in every relevant sense and thus effectively demonstrate that speech, like conduct, can infringe upon other rights. Consider that the unprotected kinds of speech actually operate by persuasion, much as Smith agrees the protected kinds do.

Take true threats. Say I threaten my neighbor by telling him that I am tired of finding his cigarette butts on my walkway and that if I see one more, I will throw a molotov cocktail through his window. Is that a threat? he asks. That is a promise, I reply. What I have just said in this hypothetical scenario is unprotected by the First Amendment; it is a true threat.

Yet what makes my words subject to criminal prohibition is precisely what makes them speech: I use language to persuade my neighbor of a factual proposition about the world, namely, that I will throw a molotov cocktail through his bedroom window if I find another cigarette butt on my walkway. If he is unconvinced of my intention, he will feel no fear. But if he feels frightened and makes arrangements based on that fear, his reaction is a direct consequence of his believing what I said to him. I have interfered with his rights, and I have done so entirely through the use of speech as speech.

We could perform the same exercise with other forms of unprotected speech. Fraudulent claims "work" by persuading their audience that a vehicle for purchase is worth more than it is actually worth. Fraudulent speech interferes with the buyer's rights via the same persuasive route. I (if I am a fraudster) did nothing physical to take the buyer's money away from him.

If I say "Go kill your landlords!" in front of a mob of ginned-up angry people ready to do whatever I say, I am inciting them to imminent lawlessness, and I am--again--doing so through the persuasive vehicle of speech. I tell them to kill, and they like what they hear and choose to act accordingly.

If I tell another neighbor that he and I could benefit from carjacking the next vehicle to go by and invite him to join me in carrying out my plan, and he finds my words persuasive, I have once again communicated persuasively through pure speech and thereby violated the law.

The same could be said for defamation, which persuades the listener or reader of false and defamatory facts about someone.

I accordingly argued in the conversation with Smith that she is mistaken in viewing the exceptions to free speech as reflecting their status as conduct rather than speech. Pure speech is sometimes too harmful to tolerate, and what makes it harmful is its impact on the minds of listeners or readers, persuading them to think or do something wrong and destructive. But we mustn't deceive ourselves into thinking that we have avoided censoring speech in these cases.

I disagreed as well with Smith's characterization of conduct as appropriately unprotected under the Free Speech clause of the First Amendment. There is a real distinction between speech and conduct, no doubt, but that distinction fails to provide us with a workable instrument for deciding whether or not to extend First Amendment protection to expression in a given case. Smith gave the example of cake bakers, a likely reference to Masterpiece Cakeshop v. Colorado Civil Rights Commission. She said that baking a cake is not speech but conduct.

(After the formal part of the presentation was over, Smith added that baking a cake involves pouring flour and eggs, etc. I exercised restraint and refrained from saying that when I bake one of my tasty treats, I never include chickens' eggs (or the eggs of blue jays, crows, or sea gulls) in the batter. This observation offers nothing probative on the issue of speech versus conduct.)

Is it really true that baking a cake is not speech? I happen to think that Masterpiece Cakeshop should have lost in the U.S. Supreme Court. I regard the Court's actual holding--on the basis of supposed religious bigotry on the part of a commissioner in the Colorado commission for civil rights--as, frankly, embarrassing. Stating, as this commissioner did, that people have historically committed atrocities in the name of religion is really just stating the obvious: take, for example, the Crusades, the Spanish Inquisition, the terrorist attacks of September 11th. Is denying a gay couple a wedding cake an atrocity of the same order as these others? No. However, people's willingness over the centuries to carry out mass murder in the name of religion should make us sensitive to claims of religious freedom that inflict harm or costs on third parties.

I would also reject both the religious freedom claim and the free speech claim in the case. The Free Exercise Clause, under existing doctrine, provides people with the right not to be discriminated against on account of their religion. Applying anti-discrimination law neutrally to everyone--including the religious baker (Jack Phillips) who feels that his religion prohibits him from baking a wedding cake for a same-sex wedding--in no way discriminates against him on account of his religion. Furthermore, the complicity claim that undergirds the argument for refusing service to a gay couple getting married is too attenuated to take seriously without effectively authorizing everyone to discriminate against any category or group of people on religious freedom grounds.

But why do I reject the speech claim? It is not because I would characterize baking a cake as conduct rather than speech. It is because, as I understand the facts, Phillips generally will bake an essentially uniform wedding cake for each couple for whom he works. Like someone who sells shampoo, mops, or shoes, then, Phillips communicates no special message about the couple by baking them a wedding cake and accordingly "says" nothing by preparing a cake.

A viewer would therefore make an error if he were to "read" the cake as conveying the message of "I approve of the particular union between the people who bought this cake." The cakes do not express a viewpiont. They are just wedding cakes. In that sense, they are conduct, but what matters is less that they are conduct than that they are only conduct. By compelling the baker to sell a cake (or even to bake one to order) for the gay couple, the government thus compels no expression of an idea that the baker prefers not to express.

Note, however, that a baker could have a free speech interest in either baking or not baking a cake, if the facts of Masterpiece Cakeshop were a bit different. Rather than invent a scenario from whole cloth, I will describe a situation that resembles one which actually arose. A trans person was going from a sex assigned at birth--let us say male--to the sex with which the person identified--let us say female. To celebrate her transition, this person asked Masterpiece Cakeshop to bake her a transition cake in which the inside would be pink (to signify her being female deep down) and the outside would be blue (to signify the male appearance that once misled everyone). Phillips refused to bake such a cake, because he regards sex as something into which everyone is born and remains rather than something that one can choose based upon one's identity.

While I wish we lived in a world in which bakers wanted to celebrate and support all of their customers, I think Phillips has a stronger case for refusing to bake the transition case than he did for refusing to bake a standard wedding cake for a same-sex couple's wedding. Phillips regards the prospective customer as a man taking women's hormones (actually a pregnant horse's hormones) and regards the whole blue and pink transition process as a sinful and unnatural process. Baking a cake that is intended by its coloring to declare that transition is an event to be celebrated represents the expression of an idea that Phillips simply does not share. Perhaps the state's interest in preventing and remedying gender identity discrimination suffices to override the free speech interest of Philips, but at least prima facie, he has a free speech right not to express the trans-positive idea with which he disagrees, even when the medium for expressing it is a cake rather than a book or a podcast.

If this notion offends some readers, consider the following scenario. In a number of states, there is no minimum age for marriage. Say a sixty year old man walks into your bakery with a twelve year old girl. You ask how you can help them, assuming that the man is the girl's grandfather. They tell you that they are getting married, and they want a wedding cake. You tell them soberly that you can bake them a wedding cake, although you wish you did not have to. They then say that they do not want a standard wedding cake. They want one that has icing in the shape of a man next to icing in the shape of a young girl with a bridal veil. You are horrified by the marriage and believe it to be an example of child sexual abuse. Should you really have to effectively endorse their wedding by using your artistic skills to construct a narrative in which the two getting married is a positive thing? Shouldn't the state need a very strong interest to overcome your expressive freedom?

We could come up with other scenarios, ones in which Klansmen want images of white sheets on the top of a cake. You get the picture. Cakes can express ideas, and when the government compels or prohibits the expression of ideas based on content or viewpoint, it infringes free speech. What would cause the Masterpiece Cakeshop case to remain a difficult one on these factual variations is that the neutral application of the anti-discrimination law principle (which we will assume just for our purposes contains an "all comers" rule) to bakers who prefer not to bake a special pedophilia cake or a special Klansman cake does not single out those bakers on the basis of the ideas that the bakers wish not to express. The law by hypothesis applies to everyone. And yet forcing people to speak for everyone--whether through speech or conduct--feels different from forcing people to sell T-shirts to everyone. It is arguably a kind of forced symbolic speech that must rest on a greater justification than rules that are completely neutral as to speech.

The principle that expressive conduct should receive the same sort of protection as speech applies as well to flag burning. No one has the right to burn anything (except perhaps the food they cook), flags included. But the law may not single out the expressive act of burning a flag from non-expressive acts of burning or expressive burnings whose message is different from that of the burning flag. When the government engages in censorship, it violates the First Amendment, and the government that outlaws flag desecration aims at the anti-patriotism message that it perceives in the desecrated flag. The same is true for marching--the government may not prohibit a march for Donald Trump while allowing a march for Hillary Clinton, and vice versa. Marching is conduct, but it is expressive conduct, and the government--if it were to permit one march and prohibit the other--would be regulating that expressive conduct based on the message expressed. That would be censorship no less than it would be censorship for the government to prohibit editorials in the newspaper that criticize Republican or Democratic members of the Senate.

I am not going out on a limb here. The Supreme Court's doctrine has for quite some time treated expressive conduct as essentially speech when the government attempts to curtail that conduct on the basis of the content or viewpoint expressed by the conduct. Professor Smith undoubtedly finds this line of cases misguided. But imagine what the world would look like if the only expression protected from the government's viewpoint-based censorship were pure speech. The government could stop people from holding a political parade if its message departed from the government's viewpoint. The government could prohibit people from painting their car the colors of the American flag while permitting them to paint their car the colors of the confederacy. The government could prohibit the population from deciding to all wear a yellow Jewish star.

The government could require people to raise their hands in response to government propaganda even though some of the people disagree and wish not to raise their hands. (I mention this example because Smith said that sticking out one's hand is conduct, not speech). And the government could require people to rise from their seats during a speech by a Democrat, with an understanding all around that standing for a speaker expresses respect for that person, while prohibiting standing for the speech by a Republican.

To decide whether we have protected speech, then, should involve an assessment of whether we have censorship. Where there is censorship--a burden based on the content or viewpoint of expression--we need to apply a very demanding test before allowing that censorship to continue. We have instances of speech regulation that passes that test, including regulation of true threats, defamation, and solicitation of a crime. And we have efforts at regulating expressive conduct that fails the test, such as efforts to regulate flag desecration. As a linguistic species, we surely do a lot of our communication with words and therefore rightly receive the greatest protection for those words. But we should focus on censorship rather than on the speech/conduct distinction to ensure that we protect all -- and only -- that which deserves protection.

I have some more things to say on this subject, but I will stop here for this post. In a future post, I plan to talk about R.A.V. v. City of St. Paul, a case from 1992 that prohibited censorship of cross-burning under a law that singled out the expression of hatred. I think this case calls for quite a bit of discussion, because it involves conduct (the burning of a cross), the expression of an idea (racial hatred, intimidation, and subordination), and the perception among many (myself included) that the message of a cross burning is strongly linked to the reason that we should be able to prohibit it. In other words, cross burning is the terrible crime that it is because it communicates the message that it does. Burning a smiley face or a graduation cap on your neighbor's lawn would not be nearly as bad as burning a cross (though it might still be unwelcome). To be continued.

9 comments:

Okay, interesting post but one that raises more questions than it answers, which is not a criticism but an indication that the post is provocative, well reasoned and worth discussion.

First of all I think Ms Colb should have made her comments on the use of eggs in cakes. Every discussion of a serious topic needs the pleasant diversion of comments like that even if they are not directly germane to the subject. It humanizes the conversation. Ms. Colb's outspoken defense of the Vegan diet is a huge plus. She should celebrate it whenever she can.

As far as free speech and cake baking is concerned, and when did cake baking become such a controversial area? Oh right, a bigot in Colorado got national attention. The better approach may be to treat it not as conduct or speech, but as commerce. That clarifies things, because we have made the decision in this nation that when one engages in commerce one does not discriminate. Don't won't to make cakes for people you hate, don't be in the cake business. Be in the cake business, then serve everyone.

The other big question concerning speech is money. Conservatives argue that money is speech, but only because the big anonymous dollars support them more than they support the opponents of conservatism. But money is much closer to conduct than it is to speech. There is no historical Constitutional basis to treat money as speech.

And we need to recognize that speech can be a weapon, and that individuals cannot weaponize speech and try to hide behind the 1st amendment. But again, conservative employ speech as a weapon more than progressives, so one is not hopeful of changes in that area.

Yes. Expressive conduct very well should be protected in various instances. I realize this results in harder line drawing. But, expressive dance, for instance, should be protected speech. If you don't want that to include strip clubs, okay, but ballet should be protected.

I'm really wary of the Eugene Volokh (conservative blogger who is generally strongly free speech motivated) saying cakes really aren't speech. The discussion does show they can have expressive content. Again, line drawing can be harder. There was a thing on this blog a few years ago regarding a case involving photography. Is a law requiring equal access to passport photos a problem? What about a Kinkos who has to print off racists and such?

So, I appreciate the discussion there. As to "money = speech," my thing there is that money is a necessary part of various rights. Donations to a charity, e.g., supports a cause. But, it isn't pure speech. This along with other things (e.g., the concern for corruption) allows more regulation. So, e.g., my city just passed a limit on contributions.

I agree with DR on the eggs. I'm not a cook so do wish more places had vegan bakery products. I have tasted them and they can be quite good.

If you want to take an Originalist's point of view it is clear that when the Founders said 'speech' they meant the spoken word. Which of course is what 'speech' means. If conseratives were consistent they would take that narrow definition, but then if conservatives were consistent pigs would be flying over Philadelphia.

In the conservative world 'protected speech' is any conduct which supports conservative causes. So baking a cake becomes protected speech.

I don't really want to take the Originalist's point of view but question if they only meant the spoken word. A salute, for instance, isn't a spoken word. I question if they didn't think that was covered. Or, many back then used "liberty poles." It would probably surprise some if that typical protest wasn't covered. Or effigies of people. etc. Or expressive dance, which has ancient origins.

As to consistency, conservatives on the Court repeatedly protect speech that doesn't support their causes too. Scalia and Kennedy voted to strike down two flag burning laws. In the long run, that can help conservative causes, but free speech is like that. They do selectively protect speech but how they do so is not simply "it's conservative, fine, it's not, you can have free rein."

How might the "original public meaning" of "speech" be tied into the "original public meaning" of "the press"? The forms of communications of thoughts, ideas? Growing up as a kid in political Boston in the late '30s, early '40s, I recall the expression "money talks" - quite often involving corruption of some sort, mixed messages. But as to back in the Framers' days, who knows? What speech as money does is provide a political loud speaker for those with wealth, a form of inequality that can be corrupting. The decimals available to the wealthy drown out the decibels of the poor. Kennedy dit not understand the Framers' concerns with corruption. (Cite: Teachout?)

Does anyone believe that if Citizen's United actions were in support of Democrats that the conservatives on the Court would have upheld campaign finance regulation? Yep, thought so.

Interesting and relevant to Ms. Colb's post is that flag burning was apparently interpreted as expression and not conduct. Isn't non-content/ non expression flag desecrtion illegal? And what about kneeling in protest during the playing of the National Anthem. Is that conduct or expression? We know where conservatives stand (pun intended) on that one.

Growing up we also had the expresssion 'money talks' followed by 'and bullshit walks'. Wonder if Shag had the same experience but was too polite to add the rest of he phrase.

Lots of great comments here. For DR and Joe re vegan baked goods, my absolute favorite is Vegan Treats in Bethlehem, PA. Unfortunately, other than shipping their cannoli (which are great), delivery is prohibitively expensive if you're not relatively nearby. If you're in NYC try Dunwell Donuts (locations in Williamsburg and the east Village). There are also lots of great vegan bakers almost anywhere if you look for them. Our Co-op carries a variety of decent vegan baked goods (although, admittedly, Ithaca is filled with tree-hugging hippies like Prof Colb and me!).